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Policy briefs are an essential tool utilized by policymakers to consolidate and condense vast amounts of information into an easily digestible form such that lawmakers may learn more about the issues on which they are legislating prior to drafting legislation and/or voting. As such, it is important to note that this policy brief is less a brief and more an overview of the history, formulation, implementation, and performance of a specific policy (the Endangered Species Act) that has already been implemented. This work an educational exercise to trace the formulation of a policy from inception to implementation and performance review.
On December 28, 1973, President Richard Nixon signed the Endangered Species Act into law. Regarded by some as the United States’ controversial and misunderstood environmental law, the ESA was enacted with the objective to address the issue of endangered and threatened species through the conservation of the ecosystems on which these species depend, to conserve the species themselves, and to enact any and all treaties necessary to facilitate these measures. According to the U.S. Fish and Wildlife Service, under the ESA, species are listed either as endangered or threatened, the former referring to danger of extinction throughout the species range, the latter referring to those species that may become endangered in the foreseeable future. The Endangered Species Act came on the heels of other environmental policies and was a key part of the environmental era. Since its inception, the law has been amended four times, and more recently, the rules that dictate how the law will be enforced have been changed. Before delving into the implementation and history of the policy itself, it is important to consider the issues it was created to address.
The Endangered Species Act was created to address the issue of species endangerment, termed “species imperilment” by Czech and Krausman. There was a concern in Congress at the “various species of fish, wildlife, and plants in the U.S.” that have gone extinct as a result of “economic growth and development untampered by adequate concern and conservation.” The origin of the species extinction/endangerment issue can be traced back to the frontier economy of the 1800s North America. The first signs of the issue of species endangerment (and the first signs of public concern) truly emerged when bison were heavily hunted for their hide, to clear grasslands for cattle, and to starve Indian tribes into obedience. Bison were extirpated (locally extinct) east of the Mississippi River by 1800, and by 1880 had been eliminated from the majority of their range. According to Dunlap (1988), the demolition of bison populations brought the issue of wildlife protection into the public eye. Other ungulates like white tail deer and elk were also heavily hunted, and in 1872 Yellowstone National Park was created to preserve these species. The heaviest losses (in terms of extinctions and extirpations) were in the East, although species suffered across the nation. The extirpation of eastern ungulates led to mirrored declines in large predators like the mountain lion and wolf in the same region due to the loss of their significant prey species. Those that switched to other large mammals made the mistake of selecting livestock, thus incurring the wrath of farmers in the form of predator-control. This trend of human domination and destruction of animal (and plant) populations continued into the passage of the ESA in 1973, at which point 500 species had gone extinct since the arrival of the British. This historical example of the damages of market hunting in the latter half of the 1800s has been replaced by habitat degradation, loss of habitat quantity, and fragmentation have been the key players in species endangerment in the 20th (and 21st) centuries. Indeed, the modification, destruction and fragmentation of habitat plays a part in 95% of listed species. According to Noss and Cutti (1994), habitat fragmentation is currently the largest concern when it comes to endangering animals. Many animals require a certain quantity of habitat, and indeed a species-area relationship does exist, but even if a set quantity does exist, the odds today are that it is increasingly fragmented, broken up over larger areas that make it so it is really more a collection of sparsely located small habitats. The key drivers of this issue, and of species endangerment more generally, currently include agriculture, urbanization, road building, logging, industrial activities, environmental tourism, hunting, pollution and atmospheric change, and more. All of these activities contribute to the transformation or destruction of useable animal/plant habitat to varying degrees, but all endanger species. Even the existence of roads in known to endanger 94 species in the U.S. alone. Thus, while there has been a shift in the major threats to species endangerment and extinction, the issue of human-caused species endangerment/extinction remains unresolved–and worse–continues to intensify.
The impact of humans on disappearance of species is so immense that it is argued that we have entered an era of the “Sixth Mass Extinction”, comparable to major extinction events such as those on the edge of the Permian Triassic (245 million years ago) and the Cretaceous-Tertiary (65 million years ago [i.e. when the dinosaurs were extinguished]). The background extinction rate always exists, but can is currently difficult to calculate, but some place it at 100 to 1000 times pre-human levels. There is also scholarly debate on whether the era we are in may be characterized as the Sixth Great Extinction, and some suggest there has been an overall diminishment of background extinction since the Cambrian Period 550 million years ago. Despite these discrepancies, it has generally remained clear to policymakers that the extinction issue should not be taken lightly, and it was even listed above oil spills, toxic waste, pesticides, and groundwater pollution in 1991 by the Chairman of the House Subcommittee on Fisheries, Wildlife Conservation, and the Environment, Rep. Gerry E. Studds (D). Thus, regardless of the distinction of the species extinction/endangerment issue as a Sixth Mass Extinction, it remains that this is a crisis resulting in immense levels of biodiversity loss.
Loss of biodiversity has economic, ecological, direct and indirect importance to human life. For example, many medicines are derived from certain plants and animals, and some animals can provide scientific models, potentially possessing traits that can allow humans to learn to deal with medical issues. Biodiversity provides genetic diversity, which is necessary for protecting and improving the food supply. Other reasons to protect animals are just that people like them, or believe them to have intrinsic moral or even spiritual value. For the sake of policy, the more salient issues are the ecological benefits of protecting species. Ironically, these reasons are arguably more important because they impact more people, but these impacts may be more difficult to see. Biodiversity is essential to ecosystem functionality and plays a role in maintaining flows of energy and natural resources. Plant photosynthesis provides oxygen and removes carbon dioxide, forests decrease evaporation, soil erosion, and help with the maintenance of clean water supplies. Fungi, bacteria, and worms decompose organic matter, replenishing the soil with nutrients. Loss of species can “erode the ecological foundation” of the ecosystems, and lead to a loss of human life. The extension of this argument is that if too many species are lost, ecosystems will collapse and all life will die. Thus, the protection of biodiversity by the identification of endangered and threatened species allows for the protection of these specific species, but also of the ecosystem as a whole.
The 20th century started an age of conservation, for which President Theodore Roosevelt is credited with starting. People in the U.S. began to pay attention to the needs of animals, and the endangerment of them by human society. In 1903, President Roosevelt saw the Wildlife Refuge at Pelican Island, FL to protect a few species of water birds whose population had begun to dwindle. The passenger pigeon went extinct in 1914, a shocking development due to its status at one time as the most populous bird in the U.S. and possibly the world. In 1918, the U.S. codified a 1916 treaty with Britain (on behalf of Canada) with the passage of the Migratory Bird Treaty Act, designed to protect migratory birds who travelled between the U.S. and Canada. Jumping ahead a couple of decades, in 1962 Rachel Carson published her groundbreaking book, Silent Spring, and set off a wave of environmentalism that would last throughout the 1960s and into the 1970s before slowing in the 1980s. In 1966, Congress passed the Endangered Species Preservation Act (ESPA) in response to increased concerns over the rate of species disappearance. This was the United States’ first endangered species law, but was rapidly followed by others. In 1969, the Endangered Species Conservation Act expanded the ESPA, allowing for the creation of a list of animals “threatened with worldwide extinction” as well as prohibiting their import without permits. In spring of 1973, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) created a plan that would protect plants/animals via regulation or prohibition on international trade (in the absence of certain permits). It was signed by 80 nations, including the U.S. Then, in 1973, Congress passed the Endangered Species Act, which would be amended in 1978, 1982, 1988, and 2004. For the purpose of this brief, the main focus will be on the core components of the 1973 ESA, although significant changes brought by the amendments will be discussed. The Endangered Species Act (1973) built upon its predecessors and was designed to address the issues of species extinction and endangerment. At the time of implementation, the ESA noted that 109 domestic species were endangered, and worldwide the number of species jumped to 300 (See Figure 1.1 for recent numbers).
Being passed in 1973, the ESA emerged from the midst of the environmental era of the U.S. virtually unopposed. According to the landmark 1978 court case Tennessee Valley Authority v. Hill, the ESA is written in plain language that reveals how important Congress viewed the issue of species endangerment as vital and seriously desired to halt and reverse the trend of species extinction, no matter the cost. Indeed, the bill was passed by Richard Nixon, a staunch republican, and the bill was passed unanimously in the Senate and 390-12 in the House, demonstrating immense bipartisan concern for this issue when it was originally passed. Nixon had called for stricter legislation protecting “endangered species of wildlife” and suggested that the Senate ratify the CITES treaty. Two bills, nearly identical, emerged on endangered species; one from Rep. John Dingell in the House, the other from Senator Harrison Williams. There was little debate in Congress over these bills, and there was widespread public support. No interest groups came forward to contest the ESA. In the conference committee, the only matter debated was how to divide the duties between the Departments of Commerce and Interior.
Joint administration of the ESA shared by the Secretaries of Commerce and the Interior. Each department has an agency charged with the administration of the ESA. The Department of Commerce utilizes the National Marine Fisheries Service (NMFS), and the Department of the Interior utilizes the U.S. Fish and Wildlife Service (FWS), respectively. The former applies the ESA to anadromous fish, while the latter uses the ESA in regard to terrestrial species, sea otters, specific marine species like sea turtles while on land, and nonmarine aquatic species. The agencies work together to implement the Endangered Species Act in their respective jurisdictions.
The Endangered Species Act has four particularly significant components, Sections 4, 7, 9, and 10. Generally speaking, together these sections require the identification of endangered species, that their essential habitat be specified, that federal agencies will not harm these species nor their environments, that any potentially harmful action be exempted only on rare occasion, that plans be developed and utilized to assist in species recovery, and that private parties/interests may not harm species without doing remedial planning. Each of these four sections will be discussed in further detail.
The ESA only protects listed species, and Section 4 is responsible for laying out the standards for listing. There are five major criteria used to determine whether the species is endangered or threatened; (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence. When a species is listed, it is also granted a “critical habitat”, which adds a layer of protection (See Figure 1.2 for additional information). Critical habitat (per section 3(5), was redefined with the 1978 amendments) is defined as the geographical area that the species was found in when it was listed that has physical and biological components that are “essential to the conservation of that species…and which may require special management considerations or protection”. Further, areas outside of this original range may be added by the secretary if they are considered to also be important to their continuation as a species. Habitats must provide adequate space, cover or shelter, food/water/air/light, sites for breeding, and be similar to those historically occupied by the species–in other words, the habitat must provide all things that the species needs to be able to live. In practice, critical habitat becomes more concerned with the minimum area that a species needs to survive. Section 4(f) also necessitates the development and implementation of recovery plans for the listed species, which do not have the force of regulations, but rather provide a framework for management.
Section 7 is concerned with the preservation if species as a whole. There are three main components; 1) under Section 7(a)(1), it is required that all federal agencies work toward the conservation of listed species pro-actively; 2) under Section 7(a)(1), as of 1978, it is required that federal agencies consult with the Service to insure that a proposed project will not harm the continued existence of a listed species at risk or destroy/degrade its habitat; and 3) under Section 7(a)(2), federal agencies are outright forbidden to damage a listed species or their critical habitat. Section 7(a)(1) has a theme of “recovery”, while Section 7(a)(2) has a theme of “no jeopardy”. Section 7(a)(2) makes it seem like a command and control type of policy, prohibitive and declaratory. Other parts of the law that are important to remember are that species are protected by any project done by a federal agency even when not on federal land. This is significant because it basically expands the jurisdiction of the ESA dramatically, a sort of “anywhere you go, the ESA is sure to follow” for federal agencies. Section 7 is also important in that it allows for the protection of endangered species on federal land, which is important in light of the fact that the government manages about ⅓ of the land, 700 million acres.
Section 9 compliments Section 7, in that it is focused on protections of individual members of listed species. In general, this section prevents harm to members of protected species, through direct killing, indirect methods like habitat destruction, and activities that interfere with or “flowing” from harm to organisms, like transport, possession, or selling individuals. There are two major components that distinguish Section 9 from Section 7; 1) Section 9 applies to “persons”, loosely defined as individuals, government bodies, and businesses, rather than just government agencies; and 2) Section 9 protects fish and wildlife more than plants, and is more effective at protecting endangered rather than threatened species. This section of the law contains a general prohibition of “taking” endangered species, a term defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct”. The definition of harm within this includes the direct killing or injury of an organism as well as significant damages to its habitat such that it could struggle to breed, feed, or find shelter. A famous series of court cases, known as the palila court cases, held that harm to species can be seen with habitat destruction because while no corpses are produced, the population diminishes.
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